Colour IV Corp.

National Labor Relations Board - Board Decisions

Mar 1, 1973

202 N.L.R.B. 44 (N.L.R.B. 1973)

44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Colour IV Corporation and Graphic Arts Internation-
al Union, AFL-CIO, CLC, Local 267.1 Case
16-CA-4547
March 1, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On November 20, 1972, Administrative Law Judge
Sidney J. Barban issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and Respondent
filed exceptions and an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,
findings,2 and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
The principal issue in this case is whether Colour
IV Corporation (hereafter, Respondent) refused to
reinstate Gary Groves, an economic striker, as a
color screener in November 19713 for a legitimate
and substantial business reason. The Laidlaw Corpo-
ration, 171 NLRB 1366. For the reasons below, we
find in agreement with the Administrative Law Judge
that Respondent's refusal to reinstate Groves did not
constitute a violation of Section 8(a)(1) and (3) of the
Act.
The facts, which are more fully set forth in the
Administrative Law Judge's Decision, are as follows.
Since 1963 Respondent, a photoengraving and
printing firm in Dallas, Texas, has recognized Local
267 (hereafter the Union) as the representative of its
employees within the Union's jurisdiction. The latest
bargaining agreement between the parties expired in
May 1971, when the parties were unable to reach
i On September 4, 1972, Lithographers and Photoengravers Internation-
al Union and International Brotherhood of Bookbinders merged to form
Graphic Arts International Union
2 The General Counsel 's motion to correct the record to show that the
name of Respondent 's vice president at the time of the strike was Weldon
Hutson and not Weldon Hudson is hereby granted
3 All dates are in 1971 unless otherwise indicated
4 That Respondent expected Groves to be able to produce at approxi-
mately the journeymen's rate is indicated by two facts First , it started him
at $4 25 an hour , only $ 43 an hour below the starting journeyman 's rate,
and agreed to raise him to $4 50 an hour if he successfully completed a 6-
week probationary period Second , under Respondent 's contract with the
Union , Groves was at most 2 years from journeyman status , and thus his
experience alone indicated that his productive abilities would be more like
those of a journeyman than an apprentice
5 Both Wilson and Johnson testified that Groves never produced more
than one properly exposed and developed color positive a day Groves
asserted that the normal journeyman rate was five a day , and that he
agreement on a new contract. In order to bring
economic pressure on Respondent, the Union
banned its members from working overtime. During
this period Respondent had the greatest volume of
work in its history, much of it color printing work.
An integral part of the color printing process could
only be done by Respondent's two color screeners,
Herschel Johnson and Lloyd Wilson, both journey-
men, who were, however, unable to complete all of
their work within normal working hours. Respondent
did have the option of hiring more journeymen color
screeners, but it had been unsuccessfully seeking
them for more than a year both from the Union and
through newspaper advertisements.
It was under these circumstances that Respondent
learned of the availability of a 3-year apprentice
color screener, Gary Groves. Although he was not a
journeyman, Respondent immediately hired him,
expecting that, in view of his substantial experience
and good recommendations from his previous
employer, Groves would quickly familiarize himself
with the unique equipment and processes of Respon-
dent's plant and thereafter produce at virtually the
same rate as a journeyman.4 Its expectations,
however, were unrealized. Groves was able to do
color screening, which involves photographing color
materials to be printed and then developing the
exposed film, but at a rate only one-fifth that of the
journeymen.5
Groves worked for Respondent only 17 days, after
which he and the other unit employees, including
Johnson, Wilson, and Melvin Taylor, the color
screening superintendent, went on strike. The strike,
which began on August 9, ended on August 16 with
the inception of Phase I of the Economic Stabiliza-
tion Program. On August 17 Respondent met with
the Union, offered immediate reinstatement to
certain strikers for whom positions were available,
and agreed to give preference to the remaining
strikers according to seniority in filling future
vacancies in positions they previously held.6 Of the
three color screeners, two, Groves and Johnson, were
produced that many at least on one occasion We need not resolve this
conflict in testimony , since it is clear that except on one occasion Groves'
production rate was substantially below that of thejourneymen
6 It is undisputed that in making this agreement with the Union
Respondent did not explicitly waive its right to refuse to reinstate strikers
for subsequent legitimate and substantial business reasons We conclude,
for the following reasons , that it also did not impliedly waive that right
First, when Respondent at subsequent negotiating sessions with the Union
raised the subject of limitations on its duty to reinstate strikers , the Union
did not once assert that on August 17 it had understood Respondent to
agree that it would reinstate all strikers unconditionally when positions
became available Second, since Respondent 's August 17 agreement exactly
paralleled the requirements of the Act as set forth in The Laidlaw
Corporation, supra, and since the parties in their subsequent meetings
negotiated with explicit reference towards Respondent 's obligations under
the Act as regards the reinstatement of strikers , we find that the only
reasonable interpretation of the August 17 agreement was that Respondent
offered to comply with the Act in reinstating strikers , and no more We
202 NLRB No. 22
COLOUR IV CORPORATION
not offered immediate reinstatement. Lloyd Wilson
had been reinstated before the strike ended and
Johnson's position had been filled by Estelle Weiss, a
journeyman color screener hired as a permanent
replacement during the strike. Respondent had no
need for Groves at the time because there had been a
sharp reduction in its business after the strike, and it
had found that its two color screeners, Wilson and
Weiss, could satisfactorily accomplish the work.?
Around mid-November Respondent decided to
transfer Estelle Weiss to another position and in
accordance with the August 17 agreement notified
the Union of an opening for a color screener.
Respondent requested it to send Herschel Johnson.
Johnson refused to return to work at the time, and
the Union sent Groves. On November 17 Groves
reported to James Webb, Respondent's chief execu-
tive officer, but Webb refused to reinstate him
because Respondent was in need of someone with a
journeyman's qualifications and Groves did not have
them. At Groves' request, Webb then consulted with
Melvin Taylor, the color screening superintendent,
and Harold Bishop, the plant superintendent. Both
men agreed that Groves did not have the necessary
qualifications. In exclusive reliance on their opinion,
Webb then reaffirmed to Groves the decision not to
reinstate him. Taylor later explained that, when he
told Webb that Groves was unqualified, he meant
that Groves could not do the work required of a
journeyman. In the context of Taylor's other testimo-
ny, it is apparent that he was referring to Groves'
inability to do color screening at the rate expected of
a journeyman color screener.8 Herschel Johnson
subsequently accepted the color screener position;
only then did Respondent effectuate the transfer of
Estelle Weiss.
We agree with the Administrative Law Judge that
the sole reason Respondent refused to reinstate
Groves on November 17 was that he did not have the
qualifications Respondent then required of its color
screeners.9 We also agree with the Administrative
Law Judge's finding that Groves in fact did not have
therefore reject the General Counsel's contention that Respondent agreed
on August 17 to reinstate all strikers unconditionally when positions became
available
' Since Respondent did not reinstate Groves on August 17 because at
that time it had a full complement of color screeners, we agree with the
Administrative Law Judge that it had a legitimate and substantial business
reason for refusing to reinstate him then However , we do not agree with the
Administrative Law Judge 's finding that Groves' position of "apprentice
color screener" was abolished after the strike Groves' position was simply
that of color screener Although he was an apprentice , the functions he
performed were identical to those of the other color screeners who were
journeymen Moreover, there were no changes made after the strike in the
normal functions of the color screeners which would have differentiated
their positions from the one Groves held before the strike
8 Taylor's comments make it plain that the reason Respondent refused to
reinstate Groves was not that he lacked journeyman status, but that he
lacked a journeyman's productive abilities, or, as Webb and Taylor termed
45
those qualifications. Whether he even had the
qualifications Respondent required of a color screen-
er before the strike is open to question, since, as we
noted above, his average production rate was only
one-fifth that of the journeymen color screeners.
Before the strike there were business reasons war-
ranting Respondent's tolerance of Groves' low level
of production. It had the greatest amount of work in
its history, most of which had to pass through the
hands of color screeners , the Union had banned
overtime work, and Wilson and Johnson were unable
to complete all the work without working overtime.
Therefore, anything Groves could contribute to-
wards increasing the rate of production was of some
value. However, when Respondent's volume of
business declined sharply after the strike, the
business reasons for which Respondent had formerly
overlooked Groves' marginal productivity ceased to
exist . Having determined to operate with only two
color screeners after the strike, Respondent justifi-
ably wanted both workers to have the productive
capacities of journeymen. Groves did not have those
capacities, since his normal production rate was only
one-fifth that of a journeyman. We therefore find
that Respondent had legitimate and substantial
business reasons for refusing to reinstate him in
November. Accordingly, we shall dismiss the com-
plaint in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint herein be, and it
hereby is, dismissed.
it, a journeyman 's qualifications Had Groves had the productive abilities,
the collective-bargaining agreement between Respondent and the Union
provided that by agreement between the parties his status could be changed
from apprentice to journeyman even though he had not served the 5 years'
apprenticeship ordinarily required of journeymen His lack of the requisite
status could therefore have been corrected easily, but his lack of the
requisite qualifications could not have been
9 The General Counsel contends, contrary to the Administrative Law
Judge's finding , that there was an additional reason for Respondent's
refusal to reinstate Groves, namely , the fact that he had charges filed
against him as a result of certain alleged strike misconduct occurring on
August 17 This matter was the subject of conflicting testimony Eli Harris,
the president of Groves ' union, testified in accord with the General
Counsel's contention , while James Webb, Respondent's president, testified
in accord with the Administrative Law Judge's findings The Administrative
Law Judge therefore necessarily made a credibility resolution in favor of
Webb, and the General Counsel's contention amounts to an exception to
that credibility resolution It is the Board's established policy not to overrule
an Administrative Law Judge 's resolutions with respect to credibility unless
the clear preponderance of all the relevant evidence convinces us that the
resolutions were incorrect Standard Dry Wall Products, Inc, 91 N LRB 544,
enfd 188 F 2d 362 (C A 3) We have carefully examined the record and
find no basis for reversing his findings
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
be placed on a preferential hiring list to be recalled
according to seniority as vacancies occurred.
At the end of the strike , one of the two journeymen color
screeners , Lloyd Wilson, who had been on strike , returned
to work , while the other striking journeyman color
screener , Herschel Johnson , and Groves were not reinstat-
ed. Some 3 months later , Respondent , in accordance with
the procedure agreed upon, requested the Union to send
Johnson for a color screener opening . When Johnson
refused the offer , the Union sent Groves for the position,
as the next senior color screener not previously reinstated.
Respondent refused to reinstate Groves on the ground that
he was not qualified for the position. General Counsel
contends that Groves was qualified for the position.
Respondent's brief suggests that certain alleged miscon-
duct asserted to have been engaged in by Groves was also
one of the reasons he was not reinstated , and is a basis for
disqualifying Groves from reemployment in any event. The
General Counsel asserts that the alleged misconduct is not
disqualifying, and was not a basis for Respondent's refusal
to take Groves back.
General Counsel argues, in effect (1) that Groves'
prestrike position was not abolished or filled and therefore
Respondent was obligated to reinstate him after the strike;
(2) that Groves was qualified for the position offered
Johnson and should have been employed in that position;
(3) that by agreeing to a preferential hiring list (including
Groves) during negotiations concerning reinstatement of
strikers, Respondent "waived" its later objection based
upon Groves' alleged lack of qualification; and (4) that
Respondent , having received notice that a decertification
petition had been filed by Respondent's employees, about
a month prior to Groves' request to be put back to work,
refused to take Groves back in order to weaken the Union
in the event of a decertification election.
Respondent argues that ( 1) its business had dropped off
at the end of the strike and it no longer had need for an
apprentice color screener; (2) the position offered Johnson
was an opening for a journeyman color screener, for which
Groves, an apprentice , was not qualified ; (3) no preferen-
tial hiring list for strikers was agreed upon; and (4) it freely
took back striking union members , including members of
the union negotiating committee and the supervisor of
color screeners , for whom it had vacancies at the end of the
strike and thereafter, and the record shows no union
animus on Respondent's part.
B. The Employment of Groves
Skilled journeymen in the processes used by Respondent
have been in short supply. Respondent had sought a
qualified journeyman for its photographic processes for
over a year through requests that the Union supply help,
and by advertising in foreign and local papers, and by
other means , with no success .2 During the last months of
the bargaining contract, Respondent had the largest
amount of business in its shop that it had had in its history.
It was apparently able to keep up with its work by working
overtime when necessary. However, when the Respondent
2 The bargaining agreement provided that the Union was to be notified
of all vacancies, and employees were to be secured from the Union, if
available
SIDNEY J. BARBAN, Administrative Law Judge: This
matter was heard at Dallas, Texas, on August 31 and
September 1 and 2, 1972. The complaint issued on May 30,
1972, based on charges filed by the Charging Party (herein
the Union) on November 8 and 30, 1971, alleges that the
Respondent I violated Section 8(a)(1) and (3) of the Act by
failing and refusing to reemploy Gary Groves in accord-
ance with a previously agreed preferential hiring list
because Groves engaged in union or other protected
concerted activity. Respondent's answer denies the com-
mission of any unfair labor practices, but admits allega-
tions of the complaint sufficient to justify the assertion of
jurisdiction under current standards of the Board (Respon-
dent sold and shipped products valued in excess of $50,000
in interstate commerce during a recent 12-month period),
and to support a finding that the Union is a labor
organization within the meaning of the Act.
FINDINGS AND CONCLUSIONS
The following findings of fact and conclusions are based
upon analysis of the record as a whole, the testimony of the
witnesses for all parties, and consideration of the demeanor
of the witnesses as they testified. To the extent that the
testimony of any witness is inconsistent with these findings
of fact and conclusions, that testimony is, not credited.
A. Summary of Facts and Issues
Respondent, engaged in the business of photoengraving
and printing in Dallas, Texas, has recognized the Union as
the bargaining representative of Respondent's employees
doing work within the Union's jurisdiction since 1963,
when Respondent started in business. The most recent
bargaining agreement between the two expired May 31,
1971 (all dates hereinafter are in 1971 unless otherwise
noted). After the expiration of the contract, at a time when
Respondent was operating under great pressure because of
the volume of work in its shop and a ban on overtime work
imposed by the Union, Respondent employed an appren-
tice photographic color screener named Gary Groves.
Groves worked for Respondent only 17 or 18 days prior to
the beginning of a strike called against Respondent in
support of the economic demands of the Union. There is
an issue among the parties as to whether Groves performed
his work satisfactorily during this period.
Groves participated in the strike together with a number
of other employees represented by the Union, including the
supervisor over the color screening operation. Within a
week, because of the imposition of a "wage freeze" as part
of the economic policies announced by the President of the
United States, the strike was called off. There is an issue as
to whether Respondent and the Union agreed that
employees who had been replaced during the strike would
The charges and complaint name the Respondent as Engravers,
Incorporated Respondent has since changed its name as set forth in the
caption of this matter
COLOUR IV CORPORATION 47
and the Union were unable to agree upon a new contract
to succeed the bargaining agreement expiring May 31, the
Union imposed an "overtime ban," forbidding its members
from working beyond the normal workday. This was
adhered to by the employees in the unit involved.
Respondent then sought to fulfill its orders by securing the
maximum production possible during the normal workday
and by contracting out work to other shops.
During the period of this overtime ban, Respondent
became aware that another firm in the city doing similar
work was laying off an apprentice, Gary Groves, who was
doing photographic color work.3 He was well recommend-
ed to Respondent by his previous employer, and after
interviewing him Respondent hired Groves on July 23 as
an apprentice color screener. Based on Groves' experience
with his prior employer, Respondent understood he was a
3-year apprentice, and agreed to pay him at a rate in excess
of that provided for that level in the expired agreement.
Groves was advised that he would be a probationary
employee for 6 weeks, but at the end of that time his rate
would be increased, and eventually he would alternate with
the two journeymen screeners on the mght shift. The
Respondent did not notify the Union that it was hiring
Groves, or that his status was that of apprentice. During
the events considered hereinafter, the Union, in fact, was
unaware that Groves was employed as an apprentice, and
not ajourneyman.
As has been noted, at the time Groves was employed,
Respondent had two journeymen doing screening work,
Herschel Johnson, a man with 13 years' experience in the
industry, and Lloyd Wilson, who had just completed his
apprenticeship in Respondent's shop. Inasmuch as Re-
spondent's equipment was sufficient for only two workers
in this process to work on a single shift, about this time
Johnson began working a night shift. After a short time
(about a week), Johnson returned to the day shift and
Wilson went on the night shift. Groves worked only on the
day shift from the date he was employed (July 23) until
August 9, the date the strike began.
It is clear that Respondent's equipment and processes
were different from those to which Groves was accustomed
at his previous employer, and Respondent expected that he
would require a period for adjustment. After the second or
third day that Groves was on the job, Wilson and Johnson,
who were under some pressure to get the work out, began
to complain in informal, casual conversations with Melvin
Taylor, the superintendent over these operations, that
Groves was not getting the work out as they had expected
(and thus was not relieving the pressure on them), and, in
addition, they were having to give Groves aid and
assistance which they thought should not be required by a
3-year apprentice. In addition, David Mixon, a journey-
man dot etcher, through whom all the screeners' work had
to pass, complained to Taylor that he was not getting
enough work from Groves. These complaints also came to
3 According to the bargaining contract with the Union, Respondent was
permitted to employ one apprentice for each seven full-time journeymen,
apprentices were required to have "five years practical experience at one or
more branches of photo-engraving or kindred process" to be classified as a
journeyman, unless otherwise mutually agreed by the parties, apprentice
pay was increased at 6-month intervals at certain percentages of the current
journeyman rate
the attention of Harold Bishop, the plant superintendent
over Taylor. It would appear that neither of these two men
had any significant opportunity to observe or supervise
Groves at first hand during this period, though Groves did
submit his work to them for evaluation. Taylor testified
that there was no complaint about the quality of Groves'
work, only the amount.4
It would appear that neither Taylor nor Bishop took any
constructive action with respect to these complaints.
Groves was not reprimanded, warned, or given any
indication that Respondent was dissatisfied with his
progress. At the most, Taylor asked Groves on two
occasions whether he could be of any assistance to Groves,
to which Groves replied, in effect, that he thought that he
was getting along all right. Taylor and Bishop state that the
turmoil and pressures in the shop at the time precluded any
greater attention to Groves. Groves' testimony that he was
making progress in the amount of work he was doing, and
in the amount of work he was doing on his own, is credited.
Taylor testified that Groves got to the point he could do
work on his own, that Groves was getting out some work,
and Taylor was appreciative of that in the circumstances.
There was no complaint about Groves' effort or attention
to work. At the hearing, Taylor testified that in his opinion,
Groves "can be trained to be a good color photographer. It
might take a while ..." On the other hand, Groves
admitted that he was not a qualified journeyman and could
not produce as much as a journeyman.
C. The Strike and the Strike Settlement
On August 9, certain of Respondent's employees in the
unit represented by the Union went on strike against
Respondent in support of union economic bargaining
demands. Among those participating in the strike was
Groves, Herschel Johnson (a member of the union
negotiating committee), Wilson (then a union member),
and Supervisor Taylor (also a union member). During the
strike Respondent was able to continue some operations
and hired some replacements for striking employees, even,
surprisingly, a new journeyman color screener, Estelle
Weiss. On August 15, the President of the United States
announced an economic program which included a "wage
freeze." On August 16, the Union called off its strike
against Respondent. The Respondent thereupon notified
the Union by telegram that it desired a meeting to discuss
the return of the strikers. This meeting was held on August
17. At this meeting, the Respondent gave the Union a list
which it had prepared showing the employees employed
before the strike in each classification. Under the classifi-
cation of "Color Screening," listed in the order of seniority,
were Lloyd Wilson, Herschel Johnson, and Gary Groves.5
At the same time, Respondent gave the Union another list
showing in handwriting the names of employees employed
during the strike including replacements for some strikers,
a At an earlier point, Taylor seemed to state the contrary, saying that
"very, very little" of Groves' work was "acceptable " There are also
implications from the testimony of other witnesses reflecting upon the
quality of Groves' work To the extent that this is inconsistent with Taylor's
testimony set forth in the text immediately above it is not credited
5 Groves' last name was misspelled "Gross." but there is no question
concerning the identification of the individual
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and in typed capital letters the names of the senior striking
employee or employees in each classification for whom
positions were open at the end of the strike. These 11
strikers (including Supervisor Taylor) were offered rein-
statement. With respect to the color screening classification,
this second list showed the names of Lloyd Wilson and
Estelle Weiss, in handwriting.6
The testimony of Respondent's witnesses, which was not
controverted, was that Weiss was employed during the
strike as ajourneyman; that while she was not as proficient
as Wilson and Johnson in color screening, she was more
versatile; and though she was handicapped somewhat by
her small size, she was a competent journeyman color
screener.
Neither Johnson nor Groves were offered reinstatement
in the color screening classification on August 17.
Respondent had lost business during the strike, and
Respondent asserts this as the basis for not employing an
apprentice in color screening after the strike. So far as the
record shows, the Respondent has employed only two
journeymen at one time in this classification since the end
of the strike. Respondent's testimony is to the effect that
these two are fulfilling its needs. There is no evidence to
the contrary, or that the two journeymen have been or are
presently working unusual hours.? There is no evidence
that the Union questioned the Respondent's contention at
the August 17 meeting that it had only two positions
available in color screening on that date and that they were
filled by Wilson and Weiss.
At this meeting on August 17, in addition to offering to
reinstate the most senior striker to each available position
in the striker's classification, Respondent agreed to place
the remaining strikers on a preferential hiring list, and to
recall them by seniority in each classification as positions
became available. At this meeting Respondent made no
distinctions as to journeyman or apprentice status, or as to
the qualifications of the remaining strikers not offered
reinstatement at that time. The procedure agreed was that
the Respondent would notify the Union with respect to
openings as they became available and the Union would
notify the employees to report. Respondent thereafter
continued to recall strikers to available positions in
accordance with this procedure.
On the evening of August 17, Respondent alleges Groves
engaged in certain conduct with respect to certain of
Respondent's employees which assertedly disqualifies him
for reemployment with Respondent. The incident involved
unquestionably came to Respondent's attention at the
time. As set forth hereinafter, however, it is clear that
Respondent's management did not consider the incident as
disqualifying Groves from reemployment. It is therefore
unnecessary to detail the circumstances of this incident.
6 It would thus appear that Wilson returned to work before the official
end of the strike
7 There is certain handwritten material on C P Exh 2, placed there by
Respondent, with respect to the discontinuance of the night shift at the end
of the strike In the absence of testimonial support, I have considered this to
be sheer hearsay, and have disregarded it
8 The record indicates that the two employees discussed in this regard
D. The Posistrike Negotiations
After August 17, on two or three occasions Respondent
attempted to obtain the Union's agreement to certain
limitations upon the prior agreement to recall the strikers
who had not been reinstated by August 17, including a
right on the part of Respondent to judge the qualifications
and competency of the strikers for reinstatement. In
particular, Respondent named two employees whom it did
not want to take back because of dissatisfaction with their
performance prior to the strike, but did not name Groves
as one of these.8 Though the Union discussed these
proposals of the Respondent they were not agreed.
Prior to a negotiation meeting about October 20,
Respondent heard that a petition for decertification of the
Union would be filed with the Board. At this meeting,
Respondent requested that negotiations be postponed for a
few days until this matter could be clarified. A decertifica-
tion petition was filed with the Board on October 20. No
further negotiations between the Respondent and the
Union have been held, although just prior to the hearing in
this matter, the Union requested a meeting on certain
changes in working conditions desired by Respondent.9
E. The Refusal To Reinstate Groves
In November, Respondent decided that it would transfer
Estelle Weiss, one of its two journeymen color screeners, to
another job function, in accordance with her desires.
Pursuant to the prior agreement with the Union, Respon-
dent notified the Union of an opening for a color screener
and requested that Herschel Johnson be sent. Johnson
refused to return to work with Respondent at the time, and
the Union sent Gary Groves, the only other color screener
on the list who had not been reinstated.
When Groves reported to James H. Webb, chief
executive officer of Respondent, on November 18, as
directed by the Union, Webb advised Groves that in
Webb's opinion Groves was not qualified for the job, that
Respondent was in need of a journeyman color screener,
and he considered that Groves "did not have what it took
to do it." Webb agreed to check with Taylor and Bishop
concerning this, and said he would call Groves that
afternoon with respect to their decision. Webb checked
with Taylor and Bishop, who confirmed his opinion, and
Webb that afternoon called and advised Groves that he
was not qualified for the position which Respondent
wished to fill, and declined to reinstate him. At the hearing
Webb emphatically denied that Groves' alleged prior
misconduct had anything to do with Respondent's failure
to reinstate Groves.
As a result of Johnson's refusal to accept the color
screening job at that time, Respondent did not transfer
Weiss from that position. At a later time, when Johnson
did come back to work for Respondent, Weiss was
transferred to another position. There is no evidence that
were J Pemberton and D Rodriguez Nevertheless , Respondent thereafter
offered J Pemberton reinstatement (See C P Exh. 5)
9 The Union's original charge in this matter had alleged that Respondent
refused to bargain with the Union in violation of the Act. The Regional
Director refused to issue complaint on this issue and was sustained by the
General Counsel on appeal from this decision
COLOUR IV CORPORATION 49
Respondent has employed more than two color screeners
since the strike , or that it has employed other than
journeymen in that position , or that the two color screeners
have not been able to perform the work required within the
usual work periods.
F. Analysis and Conclusions
Prior to the expiration of its most recent contract with
the Union , on May 31, Respondent employed two
journeymen color screeners . Because of an extraordinary
situation existing at the time , Respondent hired an
apprentice , Gary Groves, in its color screening department,
prior to the strike which began on August 9. At the end of
the strike this extraordinary situation no longer existed,
and the Respondent advised the Union that it intended to
operate the color screening process with only two persons,
both of whom were journeymen . The Union did not at any
time raise a question concerning this decision, though
Groves and one striking color screening journeyman,
Johnson , were not reinstated , and Respondent has operat-
ed with only two journeymen color screeners since the end
of the strike . It is therefore found , contrary to the position
of the General Counsel , that at the end of the strike, the
apprentice color screening position which Groves had held
for approximately 17 days was abolished by Respondent
for good and sufficient business reasons.
In November, when Respondent had under considera-
tion the transfer of one of its journeyman color screeners,
Weiss, to another position , it offered Johnson , a striking
journeyman color screener, reinstatement in the expected
opening . When Johnson declined , Respondent refused to
take Groves in his stead , and, in fact did not transfer Weiss
until Johnson at a later date agreed to come back to work.
General Counsel argues that while Groves was not as
competent as Johnson , he was qualified to do the work
required , and particularly to take the place of Weiss who
was handicapped because of her size . However , there is no
reason to discredit Respondent 's contention that the
position which it contemplated opening was one that
required the qualifications of a journeyman , as Respondent
advised Groves when he applied for the opening . Certainly,
the position was then held by a journeyman . While it
would seem that Groves received something less than a fair
trial during the 17 days he was employed by Respondent as
an apprentice , Groves himself admits that he is not a
qualified journeyman . Even as an apprentice , Groves
would still have been in a probationary status if he had
returned to Respondent 's employ. In the circumstances, it
is found that Groves was not qualified for the position then
held by Weiss , for which he was applying.
It may be that Respondent breached its agreement with
the Union in respect to the recall of strikers by its refusal to
reinstate Groves . However, this is not directly before me
inasmuch as General Counsel has not alleged this to be a
violation of the Act, or that Respondent has refused to
bargain in violation of the Act. I have , however, considered
this factor in assessing Respondent 's motive for refusing to
reinstate Groves . However, the record as a whole discloses
no animus against the Union on Respondent 's part.
Respondent reinstated a considerable number of strikers,
and at the time it rejected Groves' application to return to
work , Respondent was willing to take back another striker,
Johnson . So far as this record shows , there is no indication
that the latter was any less a supporter of the Union than
Groves.
On the basis of the above and the record as a whole,
since it has been found that the position Groves held
before the strike was abolished for proper business reasons,
that the position for which Groves applied on November
18 was a journeyman position, for which Groves was not
qualified , and that the Respondent 's motivation for
refusing to reinstate him was solely that Groves was not
qualified for the contemplated opening , it is therefore
found that Respondent did not violate the Act by refusing
to reinstate Gary Groves after the strike as alleged in the
complaint.
On the basis of the foregoing, I make the following
conclusions of law and recommended Order:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent did not violate the Act by its refusal to
reinstate Gary Groves to the position which he held before
the strike or to the position which Respondent contemplat-
ed opening about November 18, 1971.
ORDER
On the basis of the foregoing findings of fact , conclu-
sions of law , and upon the entire record in this case, the
complaint in this matter shall be and it is dismissed in its
entirety.